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Immigration Bulletin – U.S. Department of Homeland Security Issues Final Rule Governing H-1B Cap-Subject Visa Petitions

JANUARY 31, 2019 BULLETIN TO ALL IMMIGRATION CLIENTS

On January 30, 2019, the U.S. Department of Homeland Security (“DHS”) issued a final rule amending its newly proposed regulation governing H-1B cap-subject visa petitions. DHS announced that it will implement a rule reversing the order of how the H-1B cap lottery is conducted for the upcoming filing season (i.e., April 1, 2019). However, the agency will postpone the implementation of the new online registration system for H-1B cap-subject employers until the fiscal year (FY) 2021 filing period.

  • Reverse Order of H-1B Cap-Subject Visa Lottery (effective FY 2020)

The final rule reverses the order by which the U.S. Citizenship and Immigration Services (USCIS) selects H-1B visa petitions under the “regular” and “advanced-degree” H-1B cap lotteries. This portion of the rule will go into effect on April 1, 2019. Under the new lottery order system, USCIS will first select H-1B petitions submitted on behalf of all beneficiaries, i.e., those under both the “regular” cap lottery as well as those that may be eligible for the “advanced degree” exemption. USCIS will then select another 20,000 petitions to meet the U.S. advanced degree exemption. The goal of DHS in changing the order in which USCIS counts these allocations is to increase the H-1B visa lottery selection chances for beneficiaries with a master’s (or higher level) degree from a U.S. institution of higher education. Specifically, DHS estimates that this reverse order will result in an estimated increase of up to 16% (i.e., 5,340 workers) in the number of selected petitions for H-1B beneficiaries with a U.S. master’s degree or higher.

  • New H-1B Cap-Subject Electronic Registration System (effective FY 2021)

The new electronic registration requirement will not be implemented for this H-1B filing period but, once in place (in FY 2021), will require all employers seeking to file H-1B cap-subject visa petitions to first electronically register with USCIS during a designated registration period. Only those employers/employees whose registrations are selected will be eligible to then file a complete H-1B cap-subject petition (under both the “regular” and “master’s degree” lotteries). To register for the lottery, employers will be required to complete a short online form that includes basic information about the company, the prospective foreign employee (including whether he or she holds a qualifying U.S. advanced degree), and the offered H-1B position. Employers will be required to file a separate registration form for each H-1B beneficiary. Consistent with the current H-1B visa lottery rules, employers will be prohibited from submitting more than one registration form per foreign national. The registration period will occur at least 14 calendar days before the normal April 1st opening day of cap filing season and would last for at least 14 calendar days. USCIS plans to provide at least 30 calendar days’ notice prior to the registration period for each H-1B cap filing season.

The goal of DHS in implementing this new registration system is to lower overall costs for employers and increase government efficiency during the H-1B cap petition process. DHS also confirms that this new system will further President Trump’s initiative to improve the U.S. immigration system (in accordance with the Buy American and Hire American Executive Order) by providing foreign workers with a U.S. master’s or higher degree a greater chance of selection in the H-1B lottery.

All H-1B cap-subject employers should continue to work with Cohen & Grigsby’s Immigration team to prepare for the filing of H-1B cap-subject visa petitions as normal, as USCIS will begin accepting H-1B cap-subject petitions for FY 2020 on April 1, 2019.

Please contact any member of the Cohen & Grigsby Immigration Department if you have any questions regarding the above at 412.297.4900. To receive future bulletins and news alerts, please send an e-mail to bulletins@cohenlaw.com.

Copyright © 2019 by Cohen & Grigsby, P.C. (No claim to original U.S. Governmental material.)

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